Meaning of DISCOVERY? A device employed by a party to obtain information about relevant matters on the case from the adverse party in preparation for trial. Device may be used by ALL parties. PURPOSE? - Permit mutual knowledge of relevant facts - Serves as an additional device aside from a pre-trial (narrow and clarify basic issues) DUTY OF THE COURT? - Prepare the summons within 1 day from the receipt of the complaint - Issue an order requiring the parties to: o avail of interrogatories to parties under Rule 25 request for admission by adverse party under 26 o o or at their discretion, make use of depositions under 23 o or other measures under 27 and 28 within 5 days from filing the answer o copy of this would served upon the defendant together with the summons copy shall also be served upon the plaintiff o MODES OF DISCOVERY? 1.) depositions pending action 2.) depositions before action or pending appeal 3.) interrogatories to parties 4.) admission by adverse party 5.) production or inspection of documents or things 6.) physical and mental examination of persons DEPOSITIONS MEANING? Taking of the testimony of any person, whether he be a party or not, BUT at the instance of a party to the action. This is taken OUT OF COURT. METHODS? 1.) oral examination 2.) written interrogatory DEPOSITION DE BENNE ESSE= for use during a pending action; 23
DEPOSITION IN PERPETUAM REI MEMORIAM= future proceedings, cases on appeal; 24 DEPOSITIONS PENDING ACTION; LEAVE OF COURT WHEN REQUIRED Required= before the service of a answer but after jurisdiction has been acquired over any defendant or over the property subject of the action Not required= after an answer has been served DEPOSITION OF A PRISONER May be taken only with leave of court and upon such terms as the court may prescribe BEFORE WHOM TAKEN 1.) WITHIN THE PHILIPPINES: need not be take before a judge, although pwede naman. Notary public or before any person authorized to administer oaths if the parties so stipulate in writing 2.) OUTSIDE THE PHILIPPINES: - a secretary of an embassy or legation; consul general, consul, viceconsul or consular agent of the RP - such person or officer as may be appointed by commission or letters rogatory - a person authorized to administer oaths by written stipulation of the parties 3.) NO DEPOSITION SHALL BE TAKEN BEFORE A PERSON WHO IS - a relative within the 6 th degree of consanguinity of affinity, or employee or counsel of any of the parties - relative within the same degree or employee of such counsel - one who is financially interested in the action EXAMINATION OF DEPONENT 1.) oral examination= party desiting -> reasonable notice in writing to EVERY party to the action - stating the time and place for taking the deposition and - the name and address of each person to be examined after the notice is served= court may make any order for the protection of the parties and the deponents 2.) the attendance of witnesses may be compelled by the use of a subpoena 3.) the deponent may be examined or cross-examined following the procedures for witnesses in a trial; may be asked questions on direct,
cross, re-direct or re-cross; has the same rights as a witness and may be impeached like a court witness 4.) UNLESS OTHERWISE ORDERED BY THE COURT, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any party, including the existence... or other tangible things and the identity and location of persons having knowledge of relevant facts 5.) The officer before whom the deposition is taken has no authority to rule on the objections interposed during the course of the deposition although any objections shall be noted by the officer. Any evidence that is objected to shall still be taken BUT subject to the objection.
(v) when exceptional circumstances exists, upon application and notice EFFECT OF SUBSTITUTION OF PARTIES (Sec. 5, Rule 23) EFFECT OF TAKING OF DEPOSITION OF A PERSON: doesn’t, by reason of such deposition, make such person the witness of said party BUT EFFECT OF USING THE DEPOSITION IS DIFFERENT: use of any/part makes the deponent the witness IF used for a purpose other than that of contradiction or impeaching the deponent. Di rin to applicable to the use by an adverse party. ORAL DEPOSITION
USE OF DEPOSITIONS PENDING ACTION 1. Any part or all of the deposition, so far as admissible under the rules of evidence, may be used (a) against any party who was present or represented at the taking of the deposition, or (b) against one who had due notice of the deposition. The deposition or any of its parts, may be used at the trial or upon the hearing of a motion or an i nterlocutory proceeding. 2. The deposition may be used for the following purposes: (a) For contradicting or impeaching the testimony of the deponent as a witness; (b) For any purpose by the adverse party where the deponent is a party or at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party; (c) For any purpose by any party, where the deponent is a witness, whether or not a party, if the court finds that: (i) the witness is dead, (ii) that the witness resides more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or
1. A party desiring to take the deposition of any person upon oral examination shall give to every party to the action a reasonable notice in writing. Such notice is required to contain the following: (a) the time and place for taking the deposition; and (b) the name and address of each person to be examined, if known; if not known, there must be a general description sufficient to identify him or the particular class or group to which he belongs 2. Certain guidelines for oral depositions provided for under Sec. 17 of Rule 23 must be observed. These are: (a) The officer before whom the deposition is taken shall put the witness on oath; (b) The testimony of the witness or deponent must be recorded and shall be taken stenographically unless the party agree otherwise; (c) All objections made at the time of the examination shall be noted; (d) Evidence objected to shall be taken but subject to the objections. 3. In lieu of participating in the oral examination, parties served with notice of taking a deposition MAY TRANSMIT WRITTEN INTERROGATORIES to the officers, who shall propound them to the witness and record the answers verbatim 4. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, UNLESS such examination is waived by the witness and by the parties. The witness may desire some changes in form and substance, in which case such changes shall be entered upon the deposition by the officer with
a statement of the reasons of the witness for making such changes. The deposition shall be signed by the witness UNLESS the signing is waived by the parties by stipulation or the deposition cannot be signed because the witness is ill, cannot be found or if he refuses to sign 5. If the deposition is not signed by the witness, the officer shall sign it and state on the record the attendant facts together with the reason given for the non-signing of the deposition. This having been done, the deposition may be used as fully as though it was signed unless on a motion to suppress under Sec. 29[f] of Rule 23 and the court holds that the reasons given for the refusal to sign require rejecting the deposition in whole or in part 6. The officer is required to certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action “Deposition of (name of witness).” He shall likewise promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. All parties shall promptly be notified of its filing by the officer taking the deposition and upon payment of reasonable charges, the officer shall furnish a copy of the deposition to any party or to the deponent.
4. A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice. He shall proceed promptly to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him DEPOSITIONS BEFORE ACTION Availed of when a person desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court PERPETUATION OF TESTIMONY BEFORE ACTION 1. done by filing a verified petition in the place of the residence of any expected adverse party 2. Notices shall be sent in accordance with the Rules (Sec. 3) and if the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make the appropriate order for the taking of the deposition 3. is admissible in evidence in any action subsequently brought involving the same subject matter DEPOSITIONS PENDING APPEAL
DEPOSITIONS UPON WRITTEN INTERROGATORIES 1. A deposition need not be conducted through an oral examination. Pwedeng written interrogatories 2. A party desiring to take the deposition of any person upon written interrogatories shall serve the interrogatories upon every other party with: a notice stating the name and address of the person who is to answer them, the name and descriptive title and address of the officer before whom the deposition is to be taken 3. The party served with the interrogatories may also serve crossinterrogatories upon the party proposing to take the deposition within ten (10) days from service of the written interrogatories. The latter may, within five (5) days, serve re-direct interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition
1. If an appeal has been taken from a judgment of a court or before the taking of an appeal if the time has not expired, the court may allow the taking of depositions to perpetuate their testimony for use in the event of further proceedings in said court 2. The party who desires to do so may make a motion in said court for leave to take the depositions. The notice and service to be made shall be made in the same manner as if the action is pending 3. The motion shall state the (a) names and addresses of the persons to be examined; (b) the substance of the testimony he expects to elicit from each of the persons to be examined; (c) and the reason for perpetuating their testimony 4. The court shall allow the depositions if it finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice. The depositions may be taken and used in the same manner and under the same conditions prescribed for depositions taken in pending actions
4. The party against whom it is directed may make objections to the interrogatories. If he does so, said objections shall be presented to the court within ten (10) days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the interrogatories until the objections are resolved. 1. availed of by a party to the action for the purpose of eliciting material and relevant facts from any adverse party 2. within one day from receipt of the complaint, the rule mandates not only the preparation of the summons but also the issuance of an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26.
A bill of particulars is directed to a pleading and is designed to seek for a more definite statement or for particulars of any matter not averred with sufficient definiteness in a pleading. Interrogatories to parties are not directed against a particular pleading. Instead, they seek the disclosure of all material and relevant facts from a party. Written interrogatories in a deposition are not served upon the adverse party directly. They are instead delivered to the officer designated in the notice. The service of written interrogatories is a mode of deposition separate and distinct from interrogatories to parties . Interrogatories to parties are served directly upon the adverse party .
A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give deposition pending appeal, unless allowed by the court or to prevent a failure of justice
to allow one party to request the adverse party in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: (a) admit the genuineness of any material and relevant document described in and exhibited with the request; or (b) admit the truth of any material and relevant matter of fact set forth in the request A party may file and serve the written request at any time after issues have been joined.
1. availed of by filing and serving upon the adverse party written interrogatories to be answered by the party served. If juridical entity, shall be answered by any of its officers competent to testify in its behalf 2. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. 3. The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof. This period may, upon motion and for good cause shown, be extended or shortened by the court.
As a consequence of the failure to avail of this mode of discovery, the party who fails to file and serve the request shall not be permitted to present evidence on facts that are material and relevant and which are, or ought to be within the personal knowledge of the other party, unless otherwise allowed by the court for good cause shown and to prevent a failure of justice 1. It is advisable for the party to whom the written request is directed to file and serve upon the party requesting the admission a sworn statement either (a) specifically denying the matters of which admission is requested, or (b) if he does not deny the same, to set forth in detail the reasons why he cannot truthfully admit or deny those matters. This sworn statement shall be filed and served within the period designated in the
request but which shall not be less than fifteen (15) days from the service of such request, or within such further time as the court may allow 2. If the party to whom the written request for admission does not file the required sworn statement, each of the matters of which an admission is requested shall be deemed admitted
TEST TO BE APPLIED BY THE TRIAL JUDGE IN DETERMINING THE RELEVANCY OF THE DOCUMENTS: reasonableness and practicality
Any admission made by a party as a consequence of the failure to comply with the request is only for the purpose of the pending action and shall not be deemed an admission for any other purpose.
1. A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same 2. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just
To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement deferred. This deferment may be effected by the filing with the court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court
Admissions made under this mode of discovery, whether express or implied are not final and irrevocable. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just (Sec. 4, Rule 26, Rules of Court). To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission.
1. to allow a party to seek an order from the court in which the action is pending to: (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon 2. also for the benefit of the court to discover all the relevant and material facts; to be liberally construed; required to lay their cards on the title;
3. has a limitation: di pwedeng privileged
1. Rule 27 provides that the documents, papers, books, accounts, letters, photographs, objects or tangible things that may be produced and inspected should not be privileged. The documents must not be privileged against disclosure. On the ground of public policy, the rules providing for production and inspection of books and papers do not authorize the production or inspection of privileged matter; that is, books and papers which, because of their confidential and privileged character, could not be received in evidence. Such a condition is in addition to the requisite that the items be designated and must constitute or contain evidence material to any matter involved in the action and which are in the party’s possession, custody or control 2. Section 24 of Rule 130 draws the types of disqualification by reason of privileged communication: (a) communication between husband and wife; (b) communication between attorney and client; (c) communication between physician and p atient; (d) communication between priest and penitent; and (e) public officers and public interest. There are, however, other privileged matters that are not mentioned by Rule 130. Among them are the following: (a) editors may not be compelled to disclose the source of published news; (b) voters may not be compelled to disclose for whom they voted; (c) trade secrets; (d) information contained in tax census returns; and (d) bank deposits
This mode of discovery applies to an action in which the mental or physical condition of a party is in controversy. Examples of this action would be: (a) An action for annulment of a contract where the ground relied upon is insanity. (b) A petition for guardianship of a person alleged to be insane; (c) An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.
1. A motion must showing good cause for the examination, with notice to the other parties as well aside from the party to be examined. The motion shall likewise specify the time, place, manner, conditions and scope of the examination and by the person or persons by whom it is to be made 2. The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver the report, the court may make an order requiring the delivery on such terms as are just. If it is the physician who fails or refuses to make a report, the court may exclude his testimony if offered at the trial.
By requesting and obtaining a report of the examination or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination The sanctions for refusal to comply with the modes of discovery may be summarized as follows: (a) The court may upon proper application, compel a deponent who refuses to answer an oral examination. The same applies to a witness who
refuses to answer an interrogatory submitted. A refusal to answer after being directed by the court may be considered as a contempt of court IF THE APPLICATION IS GRANTED, the court shall order the deponent or refusing party to answer the question or interrogatory. If the refusal is unjustified, the court may require the refusing party or deponent or counsel, or both, to pay the proponent the amount of reasonable expenses incurred in obtaining the order pati attys fees. Refusal to answer after being directed to do so, may be considered contempt. (b) If the application for an order to compel a deponent to answer is denied because of the absence of a substantial justification, the court may require the proponent or the counsel advising the application, or both of them, to pay to the refusing party or deponent the amount of reasonable expenses incurred in opposing the application, including attorney’s fees .
(a) The court may order that the matters regarding which the questions were asked shall be taken as established for purposes of the action in accordance with the claim of the party obtaining them. (b) The court may issue an order refusing to allow the disobedient party to refuse or support designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition. (c) The court may issue an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. (d) The court may direct the arrest of any party or agent of a party for disobeying any of the orders of the court, except an order to submit to a physical or mental examination. A refusal of a party to be sworn after being directed by the court may be considered as contempt of court If a party refuses to admit the genuineness of any document or the truth of any matter of fact and serves a sworn denial thereof and if the other party later on proves the genuineness of the document or the truth of such matter of fact, the court upon proper application, may order the former to pay the reasonable expenses in making such proof, including attorney’s fees
1. The court may (a) strike out all or any part of the pleading of that party, or dismiss the action or proceeding or party, and in its discretion, (c) order him to pay reasonable expenses incurred by the other, including attorney’s fees 2. The consequences under Sec. 5 of R ule 29 will apply if a party refuses to answer the whole set of written interrogatories, and not just a particular question. Where the party upon whom the written interrogatories is served, refuses to answer a particular question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order, Sec. 3(c) of Rule 29 will apply. The following are the consequences provided for in Sec. 3(c) of Rule 29: (a) The court may issue an order striking out pleadings or parts thereof; (b) The court may issue an order staying further proceedings until the order is obeyed; (c) The court may issue an order dismissing the action or proceeding or any part thereof; or (d) The court may issue an order rendering a judgment by default against the disobedient party. 3. The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice.
